Citation Nr: 1241789
Decision Date: 12/07/12 Archive Date: 12/13/12
DOCKET NO. 10-00 408 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa
THE ISSUE
Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARINGS ON APPEAL
Appellant, C. J. V., and S. H.
ATTORNEY FOR THE BOARD
T. S. Kelly, Counsel
INTRODUCTION
The Veteran had active service from May 1963 to May 1967.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Des Moines, Iowa.
The Veteran appeared at a hearing before a local hearing officer at the RO in February 2010 and at a videoconference hearing at the RO before the undersigned Veterans Law Judge in November 2012. Transcripts of the hearings are of record.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. Service connection is currently in effect for a mood disorder, rated as 50 percent disabling; degenerative joint and disc disease of the lumbar spine, rated as 40 percent disabling; bilateral hearing loss, rated as 40 percent disabling; left lower extremity radiculopathy, rated as 20 percent disabling; and bilateral tinnitus, rated as 10 percent disabling. The combined disability evaluation is 90 percent.
2. The Veteran's service-connected disabilities preclude substantially gainful employment consistent with his education and occupational experience.
CONCLUSION OF LAW
The criteria for a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Controlling laws provide that a TDIU may be assigned when a Veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities with at least one rated at 40 percent or more and he has a combined rating of at least 70 percent. 38 C.F.R. § 4.16(a). In calculating whether a Veteran meets that 60/70 percent schedular criteria, disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system, are considered one disability. The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or following a substantially gainful occupation. 38 C.F.R. § 4.16(a).
In any event, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b); see 38 C.F.R. §§ 3.340, 3.341, 4.15 (2011).
In this regard, in Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated that there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon a Veteran's actual industrial impairment. In a pertinent precedent decision, VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria for determining unemployability include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (O.G.C. Prec. 75-91); 57 Fed. Reg. 2317(1992).
The Court has also held that a Veteran's advancing age and nonservice-connected disabilities may not be considered in the determination of whether a Veteran is entitled to a TDIU. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321 , 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other Veterans with the same disability rating. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and keep employment. Thus, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).
Furthermore, marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a).
Service connection is currently in effect for a mood disorder, rated as 50 percent disabling; degenerative joint and disc disease of the lumbar spine, rated as 40 percent disabling; bilateral hearing loss, rated as 40 percent disabling; left lower extremity radiculopathy, rated as 20 percent disabling; and bilateral tinnitus, rated as 10 percent disabling. The combined disability evaluation is 90 percent.
Based upon the above assigned disability evaluations, the Veteran has met the criteria for consideration under 38 C.F.R. § 4.16(a).
The Board notes that the Veteran has had a cerebrovascular accident for which service connection is not in effect. In conjunction with his claim, the Veteran was afforded a VA general medical examination in May 2012. The examiner, following examination, indicated that the Veteran had an obvious history of lumbar pathology and left lower extremity radiculopathy since the late 1960's. He stated that significant strokes had resulted in left upper and lower extremity strength and sensory residuals. The examiner indicated that based upon his back condition alone, the Veteran was not unemployable and that he could certainly do a sit down job. The examiner noted that the Veteran had been wheel chair bound since his stroke and stated that 75 percent of the left lower extremity symptoms were secondary to his stroke and that the remaining 25 percent were due to the service-connected back pathology.
The Veteran was also afforded a VA audiological examination in May 2012. Following examination, the examiner indicated that the Veteran, without the use of hearing aids, would experience trouble understanding speech in all listening situations. However, his hearing did not limit his ability to perform all forms of employment. It was noted that he would perform best when wearing his hearing aids in a quieter environment. The examiner indicated that the Veteran's hearing might limit his ability in an environment in which he could not wear hearing aids or where he had to wear hearing protection due to excessive noise or one which required specific hearing acuity for safety reasons.
The Veteran was also afforded a VA psychiatric examination in May 2012. The examiner rendered a diagnosis of a mood disorder due to general medical condition at that time and assigned a GAF score of 50. The Global Assessment of Function (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th ed.) (1994) (DSM IV); 38 C.F.R. §§ 4.125 , 4.130 (2011).
GAF scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).
The examiner indicated that the Veteran reported that his physical problems made him unemployable but he also stated that his irritability and problems working with others also interfered with his employability. The examiner opined that it was less than likely that the Veteran's mood disorder alone would make it impossible to secure and keep substantially gainful employment. The examiner noted that it appeared that the Veteran left the workforce due to physical medical problems.
At the time of his November 2012 hearing, the Veteran testified as to what he did during a typical day. The Veterans Law Judge took note of the Veteran's severe service-connected back disability, severe psychological disability, and severe hearing loss disability. He observed that the Veteran contended that these disabilities combined to make him unemployable. The Veteran stated that it was difficult finding any employer who would put up with his service-connected disabilities.
The service-connected disabilities which have the most impact upon the Veteran's employability status are his lumbar spine disability, with resultant radiculopathy of the left lower extremity; his mood disorder; and his hearing loss. While the VA examiners did not specifically indicate that the specific disability they each examined the Veteran for would solely prevent his ability to maintain employment, they each provided limitations that the particular service-connected disability would cause. Moreover, a review of the Veteran's past employment reveals that he was involved in activities which required much physical exertion and interaction with others.
The examiners' opinions, when read collectively, demonstrate that the Veteran cannot work in the field in which he has training and experience, that he has lack of training and education in other fields of work, and that the service-connected back, psychiatric, and hearing disabilities prevent him from obtaining and securing substantial gainful employment. The examiners' findings, along with the Veteran's testimony and work history, demonstrate that he has met the criteria set forth in § 4.16, and that a TDIU based upon service-connected disabilities is warranted.
ORDER
Entitlement to TDIU is granted.
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JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs